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Entries by Bruce Freeman

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Condominium Owners Stated a Cause of Action Based Upon Third-Party-Beneficiary Status Re: a Contract Between the Village and an Engineer Hired to Inspect the Condominiums/The Contract Cause of Action Precluded the Professional Malpractice Cause of Action

The Second Department determined that a cause of action based upon the theory that condominium owners were third-party beneficiaries of a contract between a village and an engineer hired to inspect the condominiums should not have been dismissed.  It was alleged that the engineer approved the buildings (leading to the issuance of certificates of occupancy […]

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CPLR 3408, Which Requires a Settlement Conference in a Foreclosure Action Involving a Primary Residence, Does Not Apply Where the Mortgage Collateralizes a Personal Guaranty of a Commercial Loan to a Corporation

In a full-fledged opinion by Justice Cohen, the Second Department determined a statute designed to assist homeowners faced with foreclosure on their primary residence (calling for a settlement conference) did not apply where the mortgage collateralizes a personal guaranty of a commercial loan to a corporation: CPLR 3408 (requiring a settlement conference) is certainly applicable […]

Motion to Resettle Not Proper Vehicle for Substantive Change to Order

In determining a motion to resettle pursuant to CPLR 5019(a) was not the proper vehicle for seeking the reinstatement of a cause of action the court had dismissed, the Second Department explained: “CPLR 5019(a) provides a court with the discretion to correct a technical defect or a ministerial error, and may not be employed as […]

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Arbitrator Exceeded His Authority by Modifying Punishment Imposed by Town Upon Employee for Misconduct

The Second Department determined an arbitrator exceeded his authority (by modifying punishment) as that authority was described in a stipulation prior to the hearing, and further determined objection to the arbitrator’s exceeding his authority was not waived by the town. Petitioner was a town employee who had been suspended for thirty days for misconduct.  The […]

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NYC Fire Department Cannot Be Compelled to Bargain Over the “Zero Tolerance” Drug-Test Policy for EMS Personnel

In a full-fledged opinion by Justice Richter, the First Department determined the “zero tolerance” policy requiring the termination of emergency medical services personnel who fail or refuse a drug test was not subject to mandatory collective bargaining: This appeal raises the question of whether the New York City Fire Department’s “zero tolerance” policy, requiring automatic […]

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Count (on which Jury Could Not Reach a Verdict) Dismissed Before “Entry of Sentence” on the Remaining Count Can Be Reprosecuted after Appeal

The First Department determined the defendant could be retried on an attempted rape charge which was dismissed upon a motion by the prosecution after the jury was unable to reach a verdict on that count.  The defendant was convicted of the assault count.  The assault conviction was reversed on appeal and a new trial was […]

Defendant’s Placement of a Bag in the Engine Compartment Deemed Inconsistent with An Innocent Explanation

The First Department determined the observations made by the officer, including the placement of a bag under the hood of the car, provided reasonable suspicion of criminal activity (justifying the stop): At a drug-prone intersection, experienced narcotics officers saw an illegally parked car, in which defendant and his passenger were making movements suggesting that something […]

Reopening of Suppression Hearing to Address Deficiency in People’s Case (Pointed Out by the Defense in Post-Hearing Papers) Okay (But See People v Kevin W, 187, Ct App 11-21-13)

The First Department determined the suppression court properly allowed the suppression hearing to be reopened to address a deficiency in the People’s case: The court providently exercised its discretion in reopening the suppression hearing, after both sides had rested and submitted legal arguments but before any decision on the merits had been made, to allow […]

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